United States District Court, E.D. Wisconsin
ORDER ADOPTING MAGISTRATE JUDGE DUFFIN'S
RECOMMENDATION (DKT. NO. 22), DENYING PETITION FOR WRIT OF
HABEAS CORPUS (DKT. NO. 1), DISMISSING CASE AND DECLINING TO
ISSUE CERTIFICATE OF APPEALABILITY
PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE.
February 26, 2016, the petitioner, represented by counsel,
filed a petition for a writ of habeas corpus under
28 U.S.C. §2254, challenging his March 16, 2012
conviction in Marinette County Circuit Court on one count of
repeated sexual assault of a child in violation of Wis.Stat.
§948.025. Dkt. No. 1. He paid the $5.00 filing fee. On
June 8, 2016, this court screened the petition and ordered
the respondent to answer or otherwise respond. Dkt. No. 4.
The respondent filed her response in September of 2016 and
the parties concluded briefing on August 31, 2017.
the court's heavy caseload, the court referred the case
to Magistrate Judge William E. Duffin for a report and
recommendation. Dkt. No. 21. On August 22, 2019, Judge Duffin
issued a decision recommending that this court deny the
petition. Dkt. No. 22. The recommendation advised the
petitioner that he needed to file written objections within
fourteen days of the date he was served with the
recommendation. Id. at 20. To date, the petitioner
has not filed objections to the recommendation. Because Judge
Duffin's reasoning is not clearly erroneous, the court
will adopt it and will dismiss the petition.
Standard of Review
Federal Rules of Civil Procedure apply to habeas
petitions filed under 28 U.S.C. §2254. See Rule
12 of the Rules Governing Section 2254 Cases in the United
States District Courts. Under Fed.R.Civ.P. 72(b), if a party
does not object to a magistrate judge's report and
recommendation, the district court reviews the magistrate
judge's recommendation for clear error. Fed.R.Civ.P.
72(b); Johnson v. Zema Sys. Corp., 170 F.3d 734, 739
(7th Cir. 1999) (citations omitted). Because the petitioner
has not filed any objections, this court's only task is
to review Judge Duffin's report and recommendation for
Judge Duffin's Report and Recommendation (Dkt. No.
Facts and Procedural History
following is a quote from the “Facts and Procedural
History” section of Judge Duffin's report and
In September of 2010, fifteen-year-old MCN told her mother
that, when she was in elementary school, her then-stepfather,
[the petitioner], would lay in bed with her and sexually
assault her with his hand. (ECF No. 8-15 at 94.) MCN's
mother and [the petitioner] had been divorced for years and,
although MCN could recall certain details of the assaults,
she was unable to recall many details as to when the assaults
occurred. Other than recalling that the assaults occurred
after the family had moved in a newly built home but before
she entered middle school in fifth grade, she could not be
more specific. (ECF No. 8-15 at 96, 110, 116.) Other evidence
demonstrated that the family moved into the home in
early-2003 (ECF No. 9-16 at 91), and MCN would have begun
fifth grade in late-2005.
MCN also reported other incidents of a sexual nature
involving [the petitioner]. In one, [the petitioner] chased
her around the house in a playful manner, caught her, and
took off her clothes. She did not recall the context of this
incident, but it might have been related to getting her to
take a bath or ready for bed. (ECF No. 8-15 at 112.) In
middle school, [the petitioner] would weigh her naked, and
would sometimes carry her there by putting her on his
shoulders while she was naked. (ECF No. 8-15 at 98-99.) And
there was one last instance where he got into the shower with
her. (ECF No. 8-15 at 97.) MCN was naked but Hurley was
wearing his underwear. Hurley asked MCN if she would tell her
mother about it and she said she would. (ECF No. 8-15 at
97-98.) But she was afraid and did not report it until she
In July 2011, Hurley was charged with one count of repeated
sexual assault of a child occurring between 2000 and 2005.
(ECF No. 18.)
After MCN accused [the petitioner], his sister contacted law
enforcement and reported that, when she was between eight and
ten years old, [the petitioner] repeatedly sexually assaulted
her. These incidents occurred in the early to mid-1980s,
roughly 20 years before the sexual assault of MCN, when [the
petitioner] was about 12 to 14 years old.
[the petitioner's] objection, his sister was allowed to
testify about [the petitioner's] alleged sexual assault
of her. Prior to her testimony, the court instructed the jury
Members of the Jury, evidence will now be presented regarding
other conduct of the defendant for which the defendant is not
on trial, specifically evidence will be presented that the
defendant engaged in sexual intercourse with Janell
Goldsmith. Sexual intercourse means any intrusion however
slight by any part of a person's body or of any object
into the genital or anal opening of another. Emission of
semen is not required.
If you find this conduct did occur, you should consider it
only on the issues of opportunity and method of operation.
You may not consider this evidence to conclude that the
defendant has a certain character or a certain character
trait and that the defendant acted in conformity with that